Philpott v. United States of America, The et al

Filing 6

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Robert S. Philpott. Objections to R&R due by 4/17/2009. Signed by Honorable James R. Marschewski on March 31, 2009. (sh)

IN THE UNITED STATES DISTRICT COURT WE S T E R N DISTRICT OF ARKANSAS FO R T SMITH DIVISION

R O B E R T SCOTT PHILPOTT v. C iv il No. 08- 2131

PLAINTIFF

THE UNITED STATES OF AMERICA; D R U G ENFORCEMENT AGENCY (DEA); U N IT E D STATES SECRET SERVICE; FE D E R A L BUREAU OF INVESTIGATION (FBI); FE D E R A L BUREAU OF NARCOTICS; U N K N O WN NAMED AGENTS; UNITED STATES COURTHOUSE; UNKNOWN NAMED DEFENDANTS; UNITED STATES ARMY; S T A T E OF ARKANSAS; STATE TROOPER'S OFFICE; ARKANSAS D E P A R T M E N T OF COMMUNITY C O R R E C T IO N S , PAROLE OFFICE; C IT Y OF FORT SMITH; FORT SMITH P O LIC E DEPARTMENT; SEBASTIAN C O U N T Y SHERIFF'S DEPARTMENT; U N K N O W N NAMED OFFICERS; and the S E B A S T IA N COUNTY COURTHOUSE

D E FE N D A N T S

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE R o bert Scott Philpott filed this civil rights action pursuant to 42 U.S.C. § 1983. He proceed s pro se and in forma pauperis. The case is before the undersigned for a determination of w hether service of process should issue. B a c kg r o u n d T h e complaint in this case is difficult to follow. It consists largely of paragraphs of citations to various statutory laws, case law, definitions, quotations, etc., having to do with the illegal use

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o f pen registers, the invasion of privacy, the Fourth Amendment, confession, eavesdropping, trackin g devices, and warrantless monitoring. In 2003, Philpott alleges a white female described as approximately 5'10" tall and having lo n g brownish red hair left three pair of the pen register/trap and trace tracking devices at the residen ce located at 3915 Mussett Road in Ft. Smith, Arkansas with a man, Danny Rankins, or they w e re left by him. Philpott alleges the devices have been on and used illegally since then and w ith o u t a doubt have been used since January 2006. Philpott alleges he has been slandered by o fficials saying he was wearing a wire making him an informant when he was not. Philpott alleges these devices and the breaking of the statutes and the United States C o n st it u tio n have caused him personal injury. He asserts that these actions violate the statutory au tho rizatio n for such devices, Ark. Code Ann. § 5-60-120 and 18 U.S.C. §§ 3122-3127. Philpott m ain tain s these devices cannot be used for a period exceeding sixty days. Discussion P h ilp o tt's claims are subject to dismissal. First, with respect to the federal defendants, we c o n s t r u e Philpott to be attempting to bring claims under Bivens. In Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), the United States Supreme Court allowed a plaintiff to seek money damages from federal officials for alleged violations of rights secured by the Constitution and laws of the United States. "An action under Bivens is almost identical to an action under section 1983, except that the former is maintained against federal officials while the latter is against state officials." Christian v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990). While a Bivens claim allows a plaintiff to seek redress against federal actors for civil rights violations, the Supreme Court has held that a plaintiff has no Bivens cause of action

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against federal agencies, the United States, or public officials acting in their official capacities. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 486, 114 S. Ct. 996, 1006, 127 L. Ed. 2d 308 (1994). Philpott, therefore, has no Bivens action against the United States, the DEA, the Secret Service, the FBI, and any agents of those entities in their official capacities.
Second, the factual allegations contained in the complaint are irrational,

in c o m p re h e n s i b l e , and clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S. Ct. 1 7 2 8 , 118 L. Ed. 2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 325-328, 109 S. Ct. 1827, 1 0 4 L. Ed. 2d 338 (1989)(clearly baseless allegations are those that are fantastic, fanciful, or d e lu s io n a l.).

Third, this complaint is subject to dismissal on res judicata grounds. Philpott filed a prior civil action based on the same claims, Philpott v. Barnett, et al, Civil No. 07-2074. While a dismissal under 28 U.S.C. § 1915(d) "does not bar future litigation over the merits of a paid complaint making the same allegations as the dismissed complaint, a § 1915(d) dismissal has res judicata effect 'on frivolousness determinations for future in forma pauperis petitions.'" Waller v. Groose, 38 F.3d 1007, 1008 (8th Cir. 1994). Accordingly, the dismissal of 07-2074 has res judicata effect and establishes that this claim is frivolous for § 1915(d) purposes. Id.
C o n c lu s io n I therefore recommend that this case be dismissed on the grounds the claims asserted are friv o lo u s, fail to state claims upon which relief can be granted, and the defendants are immune from su it. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii)(IFP action, or any portion thereof, may be dismissed o n such grounds at any time). P h i lp o t t has ten days from receipt of the report and recommendation in which to file w r itte n objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections

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m a y result in waiver of the right to appeal questions of fact. Philpott is reminded that o b j e c t i o n s must be both timely and specific to trigger de novo review by the district court. D A T E D this 31st day of March 2009.

/s/

J. Marschewski

HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE

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